There are several troubling provisions of post-9/11 antiterrorism and security measures that PEN is studying and will address in its Campaign for Core Freedoms. One of these is Section 215 of the USA Patriot Act, which opens records of individual reading activities to government scrutiny. Thanks in large part to the efforts of librarians and booksellers, several proposed amendments have been introduced in both the Senate and the House of Representatives that would restore certain basic protections for reader privacy, and PEN American Center has been working closely with th e American Booksellers Foundation for Free Expression and the American Library Association to encourage our constituencies to learn more about Section 215 and how it impacts the freedom to read.



In 1953, Supreme Court Justice William O. Douglas wrote, "If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land." Almost all states have since passed confidentiality laws protecting records of reading habits, believing, as a New York State legislator explained when that state passed its library confidentiality law in 1982, "[These] records must be protected from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history."



Under the Foreign Information Surveillance Act of 1978 (known as "FISA"), certain business records could be reviewed only "for purposes of conducting foreign intelligence" if the target was "linked to foreign espionage" or an "agent of a foreign power." Section 215 amends and greatly expands the scope of FISA by granting the FBI the power to access and review "any tangible thing," including bookstore and library records. Those served with Section 215 orders are prohibited from disclosing the fact to anyone else and subjects of surveillance are never notified that their privacy has been compromised. There is no possibility of appeal or independent court review of Section 215 FISA orders.



In addition, investigators are no longer required to limit searches to individuals suspected of involvement in terrorism; instead, they simply need to state to a FISA court judge that the records requested are in connection with a terrorist investigation. This assertion alone is sufficient: The FISA judge has no authority to reject this application. Last year, the FISA court itself rejected 75 subpoena requests, saying it had been misled by FBI agents on the purpose and nature of their investigations. When that decision was overruled by the Department of Justice’s review court-which claimed that all requests for FISA orders are acceptable even if the primary purpose of the investigation has nothing to do with terrorism-The New York Times expressed alarm, calling the ruling "a green light to spy."



Section 215 makes a nod to the First Amendment, but there is no guarantee that searches will not be launched in response to First Amendment-protected activities. Indeed, for non-citizens, no such protection exists at all; they can be investigated solely on the basis of First Amendment-protected activity if the government claims the search is part of a terrorism investigation. And although the section forbids the government from seeking the bookstore and library records of US citizens on the sole basis of activities protected under the First Amendment, it allows a search if the government asserts there is another, not necessarily terrorism-related, basis to the investigation as well. Finally, the provision is shrouded in secrecy in ways that make it impossible to monitor the conduct of government agents, end improper investigations, or-perhaps most alarmingly-know if or when an investigation has occurred.



PEN American Center is urging a comprehensive review of this provision of the USA Patriot Act.



>> Campaign for Reader Privacy